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TMI Blog2021 (3) TMI 1187X X X X Extracts X X X X X X X X Extracts X X X X ..... exercising the suo motu revisional power and interfering with the order passed by the second respondent dated 20.01.1997, in Appeal No.188/95, which was allowed in favour of the petitioner setting aside the assessment made by the third respondent on the turnover of Rs. 44,90,687/- at 10% under the CST Act. 3.W.P.No.6254 of 2004 has been filed by the petitioner for issuance of a Writ of Mandamus to direct the Assessing Officer to pay a sum of Rs. 1,36,768/- along with interest at 12% from 13.05.2003 till the date of payment. 4.W.P.No.9363 of 2004 has been filed by the petitioner challenging an order passed by the Joint Commissioner rejecting the miscellaneous petition filed to rectify the order impugned in W.P.No.35839 of 2003. 5.Thus, among the three writ petitions, W.P.No.35839 of 2003 is the lead case and the result of the other two writ petitions would depend upon the decision to be arrived at in W.P.No.35839 of 2003. 6.Heard Mr.V.Srikanth, learned counsel for the petitioner in W.P.No.35839 of 2003 and W.P.No.9363 of 2004 and Ms.L.Maithily, learned counsel for the petitioner in W.P.No.6254 of 2004 and Ms.G.Dhanamadhri, learned Government Advocate for the respondents in all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner was rejected and the first respondent passed the impugned order dated 28.05.2003. 10.The petitioner would contend that the first respondent failed to note that the petitioner had not purchased any goods in Chennai and hence, transportation of the same to Pondicherry does not arise. On the other hand, the petitioner had sold goods ex-works/ex-factory, the buyer took delivery of the goods and transported the same on his own responsibility to Pondichrry and the petitioner had issued Form XX declaration only for the purpose of transportation of goods and did not take the responsibilities of transportation to Pondicherry. 11.It is further submitted that the decision in Co-operative Sugars (Chittur) Ltd. (supra) cannot apply to the facts of the petitioner's case, as the first appellate authority had given a specific finding that the prices quoted were ex-godown and the purchasers had themselves taken delivery of the goods from the petitioner and transported the goods themselves to Pondicherry. Further, the first respondent did not take note of the decision relied on by the petitioner reported in S.K.Shanmugavelu (supra) in their reply to the show cause and non-consideration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s seen from the contemporaneous endorsement and evidence. 14.Further, the petitioner stated that there was some dispute between the purchasers and petitioner and Form-C declarations have not been issued and the Assessing Officer failed to grant reasonable opportunity to the petitioner to submit the declaration forms and they may be granted reasonable opportunity to produce the Form-C declaration before the appellate authority. The appellate authority after hearing the Departmental representative, held that a perusal of the sale invoice and the delivery challan issued by the petitioner reveal that they have obtained the signature of the purchasers in token of having received the goods, however, they have issued Form XX for the transportation of goods from Madras to Pondicherry showing the petitioner as the consignor and the purchasers as the consignee. 15.The appellate authority took note of the petitioner's submission that they have issued Form XX declaration only at the instance of the purchasers and this would not change the character of the transaction as a local sale. Further, the appellate authority took note of the endorsement in the delivery challan endorsing receipt o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. In the said decision of the Hon'ble Supreme Court, the facts were that the appellant therein had it sugar factory in Kerala State and pursuant to a Government Order issued by the Tamil Nadu Government, specifically permitting them to open office in Coimbatore and Pollachi Taluks only with a view to and exclusively for the purpose of transporting to their factory in Kerala, the Hon'ble Supreme Court held that such sale was an interstate sale. Furthermore, in the said case, whatever was purchased was transported to the factory in Kerala. Under such circumstances, the Hon'ble Supreme Court held that the movement of goods from Tamil Nadu to Kerala was an incident and was inextricably connected with the sale/purchase and that the purchase/transport was part of one transaction. Thus, the said decision was rendered on the fact situation that the purchase and transport could not be disassociated and there was no break between the purchase and movement of goods to another State. 20.As rightly contended by the learned counsel for the petitioner, the facts dealt with in the said decision were peculiar and the first respondent was not justified in issuing show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside the order passed by the first respondent dated 28.05.2003, no separate orders are required in W.P.No.9363 of 2004 and accordingly, the same is closed. 25.In W.P.No.6254 of 2004, the petitioner seeks for payment of interest. It is seen that after the first appellate authority allowed the petitioner's appeal, vide order dated 20.01.1997, the assessing authority revised the assessment by order dated 07.11.1997, and ordered for refund under Rule 5(6) of the CST Rules, ordering refund of the excess tax of Rs. 2,42,405/-. Though such order was passed, refund was not made to the petitioner and therefore, the petitioner addressed the Assessing Officer by letters dated 10.06.1998 and 15.07.1998 requesting for immediate refund. Since no orders were passed, the petitioner filed W.P.No.10928 of 1998 to direct the Assessing Officer to refund the excess tax paid. The writ petition was disposed of by order dated 13.02.2008, with a direction to refund the said sum within a period of one month from the date of production of the order with interest at 12% from 28.01.1998. The petitioner has forwarded the copy of the order passed in the writ petition and requested for complying with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance has been placed on the order passed by the Joint Commissioner dated 28.05.2003, restoring the original assessment order and therefore, it is submitted that prayer for payment of interest does not arise, as it is the petitioner, who has to pay a sum of Rs. 4,57,856/- as per the order passed by the Joint Commissioner, and they had paid only 50% of the tax, which has been demanded and the petitioner has retained the balance amount of 50% of the tax due to the Government from 29.08.2003. The order passed by the Joint Commissioner dated 28.05.2003, has been set aside by us in W.P.No.35839 of 2003. Therefore, the contention advanced by the respondent for refusing to pay interest by relying upon the order of the Joint Commissioner is no longer tenable. Therefore, the petitioner is entitled for payment of interest. However, on account of the events, which have taken place in the interregnum, 50% excess tax, which was refunded has been paid back by the petitioner to the Department and the remaining 50% is stated to be lying with the petitioner from 29.08.2003. Therefore, it is necessary that the interest should be re-worked taking note of the events, which have taken place, after the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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